So I listened to the session, which you can find as the top righthand video on this page. Gurry's comments are a little silly, but he does not say that the web would have been better off if it were patented. Instead, he's responding to the point raised earlier in the session about the importance of investment in basic research, and noted that CERN -- where the web was first developed -- might have been able to invest more in basic research if it had been able to receive a small bit of revenue from patenting the web. In that context, his comments make slightly more sense:

Intellectual property is a very flexible instrument. So, for example, had the world wide web been able to be patented, and I think that is a question in itself, perhaps the amount of investment that has gone into or would be able to go into basic science would be different. If you had found a very flexible licensing model, in which the burden for the innovation of the world wide web had been shared across the whole user community in a very fair and reasonable manner, with a modest contribution for everyone for this wonderful innovation, it would have enabled enormous investment in turn in further basic research. And that is the sort of flexibility that is built into the intellectual property system. It is not a rigid system...

He certainly is not arguing that the web would have been better off -- just that it's possible that CERN and its investments in basic research would have been better off. Of course, there is a counter argument to that -- which is that if it had locked up the web in such a manner, the web that Berners-Lee created would not be "the web." It's doubtful that Marc Andreessen would have paid a license fee, no matter how "reasonable," to build the first "successful" web browser, Mosaic. It's likely that something else would have come along instead -- perhaps similar, but not the same.

Separately, I'd argue that, in an indirect manner, it's quite likely that the widespread success of the internet and the openness that it embraced has contributed significantly more back to the ability to do basic research than if CERN had been able to collect a few dollars for the invention. What the web did do was certainly raise CERN's profile even higher around the globe, and that likely opened up new opportunities for research and funding, among other things. Gurry's mistake, here, is in assuming that the necessary ingredient for increased basic research is merely money -- and also only money that comes directly in return for a concept. That's not true. As the rest of the panel he sat on discussed, the key ingredients of innovation tend to be openness, sharing and access to information. All of those contribute back to lots of different areas, including basic research. So I doubt his conclusion is accurate, but it's unfair to accuse him of saying something he simply did not say.

An alternative to that proposal is the selling of SDKs, which, at the time, would have perhaps been a fantastic short-term revenue generator (provided, of course, that all involved knew what was going to happen).

"If you had found a very flexible licensing model... And that is the sort of flexibility that is built into the intellectual property system. It is not a rigid system..."

What Francis Gurry is trying to argue is that the patent system does not necessarily kill innovation. That the patent system allows flexibility which allows new technology to thrive and grow while also giving the inventors some money to continue innovating on their own.

However, Francis Gurry is living in a hypothetical dream world. The real world of patent law does not work that way. He's right that it could, but it never will.

Rigid

that is the sort of flexibility that is built into the intellectual property system. It is not a rigid system...

That is the problem with IP - actually it IS a rigid system.

Once you have a system that allows the extraction of monopoly rents then it will attract the greedy deal makers of this world. Once they are involved then the law will get involved and - inevitably - it will become a rigid system because people will be scared to do anything that might attract a lawsuit.

To create a more flexible system you first have to fix the civil legal system to remove its "poker" element - where the person with the biggest pot of money can almost always buy victory. (In fact actual poker has some rules to prevent this problem so the legal system is worse).

Next you have to find a way to discourage those who want to make money by trading assets rather than creating actual value added.

If you could do those two then you would have a system populated by people with general trust and operating without fear. Of course in those circumstance it would be hard to argue that you actually NEED an IP system.

Goodwill

had the world wide web been able to be patented, and I think that is a question in itself, perhaps the amount of investment that has gone into or would be able to go into basic science would be different.

Actually, by giving the Web to the world for free CERN has greatly improved the image of basic science - which may otherwise have been an obstacle to the public funding on which CERN lives.

Gopher, anyone?

Actually, we know exactly where the Web and its creator would have been had it been patented and requiring a fee, thanks to a historical precedent called the Gopher protocol. Never heard of it? Precisely!

The details can fill up a small book, but essentially Gopher was more lightweight, more elegant and required much less computing power to work than the WWW. It was also inflexible, and proprietary technology to boot. And now it's relegated to a small hobbyist thing, after being on life support for years. Needless to say, the license fee has been dropped a long time ago, but it was too late.

Re:

Re: Goodwill

To clarify the detail:

At present CERN's main activity (LHC) has a rather mixed public image - with various (phony) scare stories and jokes about stupid mistakes that have wasted large sums of money. Add to that the fact that most of the public has little or no clue about the purpose of LHC and you do not have a wonderful climate for asking for extra funds.

The one positive is the fact that the web was given to the world.

Now consider what would have happened if Gurry's idea had been followed. Everyone would have to pay a "CERN tax" for their internet activities - which would probably be unpopular in the same way that the BBC license fee is (even though people like the BBC!).

It would not be long before all other sources of funding for CERN would start to dry up and CERN would turn into a quasi-commercial organisation and probably end up being privatised like Qinetic. Basic research would be dead in a decade.

Mike Masnick: "He certainly is not arguing that the web would have been better off -- just that it's possible that CERN and its investments in basic research would have been better off.

Well, point taken. But isn't copyright's raison d'Ítre is that society as a whole benefits?

So, the Occam's Razor question: If CERN had been paid modest contribution[s] [from] everyone for this wonderful innovation, would the enormous investment[s] [which] in turn further[ed] basic research, would the world have been better off than what we have now?

If...the burden for the innovation of the world wide web had been shared across the whole user community in a very fair and reasonable manner...

Wasn't it though? Berners-Lee developed the HTTP part, someone else worked on browsers, and its development has been spread out over voluntary working groups all over the world. If it had been proprietary, even though licensed, wouldn't the development have been closed off, such as happened with Flash?